United States District Court, N.D. Georgia, Gainesville Division
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
J. CLAY FULLER, Magistrate Judge.
Plaintiff seeks relief under the Federal Tort Claims Act ("FTCA") for the loss of her automobile. (Doc. 1). The government has moved to dismiss her complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. 31). It is RECOMMENDED that the government's motion be GRANTED.
I. The Complaint
Plaintiff states that "this action arises under the" FTCA, and "[j]urisdiction is conferred upon this Court by 28 U.S.C. § 1346(b)." (Doc. 1 at 1). She alleges that on December 10, 2010 she lost her 2004 Toyota Rav 4 automobile, valued at $20, 000, when "the ICE [Immigration and Customs Enforcement] office tricked [her] to go to [the] Newnan Georgia Department of Driver Services office" to obtain a Georgia driver's license. ICE Agent Rodriguez, acting at the direction of his supervisor, arrested Plaintiff there, allegedly abandoning Plaintiff's vehicle in the parking lot rather than impounding it. (Doc. 1 at 2-4).
II. The Nature Of An FTCA Cause Of Action
The United States is the only permissible defendant in an FTCA action. See 28 U.S.C. § 2679(b)(1) (stating that the FTCA remedy against the United States "is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim"). "It is well settled that sovereign immunity bars suits against the United States except to the extent that it consents to be sued." Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999). The FTCA provides a "limited waiver" of this sovereign immunity, "making the United States liable for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office [or] employment.'" JBP Acquisitions, L.P. v. United States ex rel. FDIC, 224 F.3d 1260, 1263 (11th Cir. 2000) (quoting 28 U.S.C. § 1346(b)(1), which also provides that liability attaches "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred").
A. The Government's Motion To Dismiss
The government moves to dismiss Plaintiff's complaint because "Congress... expressly excluded from the waiver of sovereign immunity [a]ny claim arising in respect of... the detention of any goods, merchandise, or other property by any... law enforcement officer.'" (Doc. 31 at 4 (quoting 28 U.S.C. § 2680(c)). The government argues that (1) this exclusion "applies to all injuries associated in any way with the detention of goods or property by any law enforcement officer, " and (2) an ICE agent is a law enforcement officer. ( Id. at 5). The government concludes that Plaintiff's claim is barred by the doctrine of sovereign immunity and that this Court thus lacks subject matter jurisdiction to entertain her claim. ( Id. at 5-6). Plaintiff has not filed a response to the government's motion to dismiss, despite being granted two extensions of time to do so. ( See Minute Entries for Apr. 30 and June 24, 2014).
A federal court has "a continuing obligation to assess [its] subject matter jurisdiction. Under the law of this circuit,  parties cannot waive subject matter jurisdiction, and [a court] may consider subject matter jurisdiction claims at any time during litigation." Belleri v. United States, 712 F.3d 543, 546-47 (11th Cir. 2013) (internal quotations omitted) (reviewing the district court's FED. R. CIV. P. 12(b)(1) dismissal of appellant's FTCA claim for negligence "on the ground that the discretionary function exception to the Act barred his claim").
1. ICE Agents Are Law Enforcement Officers Under 28 U.S.C. § 2680(c).
There are a number of exceptions to the FTCA's waiver of sovereign immunity. The 28 U.S.C. § 2680(c) exception exempts from the waiver, and thus reasserts the United States's sovereign immunity from, "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer...." See Ali v. Fed. Bureau of Prisons, 204 Fed.Appx. 778, 779 (11th Cir. 2006). Although there does not appear to be any caselaw in this circuit addressing whether ICE agents are law enforcement officers under § 2680(c), at least one court in this circuit has found that "they are law enforcement officers as contemplated by § 2680(h)" because they "are empowered by law to execute searches, to seize evidence, [and] make arrests for violations of Federal law.'" Lyttle v. United States, 867 F.Supp.2d 1256, 1297 (M.D. Ga. 2012) (quoting Nguyen v. United States, 556 F.3d 1244, 1252 (11th Cir. 2009), and citing federal statute that lists immigration officers' powers); see 28 U.S.C. § 2680(h) (defining "investigative or law enforcement officer' [as] any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law").
And in other circuits "[t]he term other law enforcement officer' [in § 2680(c)] has been construed broadly to include, among others, ICE officers." Yao Gamado v. White, No. 08-3831, 2008 U.S. Dist. LEXIS 73013, at *6 (D.N.J. Sept. 24, 2008); see also Halverson v. United States, 972 F.2d 654, 655-56 & n.11 (5th Cir. 1992) (noting employees of the Immigration and Naturalization Service, now ICE, "are authorized to ...